19 September 2013

At the end of last year, we wrote about an extraordinary attempt by the University of California (UC) to resuscitate the infamous "Eolas" patents that were thrown out
earlier by a jury in East Texas. Clearly, the University of California
likes patents, and the way that they can be used to extract money from
people with very little effort. In fact, it likes them so much it is
trying to privatize research produced by taxpayer-funded laboratories so
that even more patents can be taken out on the work, and even more
money obtained through licensing them. The background to this new approach,
implemented via a new entity provisionally entitled "Newco", is
described in a fantastic feature by Darwin BondGraham that appears in
East Bay Express:

In the wake of the news that spies at GCHQ -- the UK equivalent of the NSA -- have been tapping
into every fiber optic cable that comes into and goes out of the
country, downloading and storing phone calls and Internet traffic for up
to 30 days, you might think the British authorities have enough
information at their disposal, without needing to turn to other sources.
But it seems not, according to the latest revelations in The Guardian:

Earlier this month, the messaging service Viber was blocked in Saudi Arabia.
This was not entirely unexpected, since the authorities had been
trying to come to grips with the service and its ability to encrypt
messages for a while according to Viber's founder, as a BBC News report
explains:

As we've noted before, when it comes to the Internet, governments around
the world have an unfortunate habit of copying each other's worst
ideas. Thus the punitive three-strikes approach based on accusations,
not proof, was pioneered by France, and then spread to the UK, South
Korea, New Zealand and finally the US (where, naturally, it became the
bigger and better "six strikes" scheme). France appears to be about to abandon this unworkable and ineffective approach, leaving other countries to deal with all the problems it has since discovered.

It's hard to believe that the heady times that saw SOPA's rise and fall are only a year and a half ago. Of course, SOPA didn't die, but was merely "delayed". But if you've ever wondered what happened to it, wonder no more; it emigrated to Russia, as TorrentFreak reports:

Last year, we reported on Australia's plans to bring in comprehensive snooping on its citizens, and more recently how its spies had realized that encrypted services offered an easy way to avoid much of that surveillance. Reuters is now reporting that Australia has put its spying plans on hold -- for the moment:

There finally seems to be a growing recognition in many countries that
copyright is not fit for the digital age. In the US, the Copyright Registrar
has spoken on this; in the UK, the Hargreaves Review delineated many
problems; and more recently, Australia, too, is starting to address the
question. As part of the process of implementing Hargreaves'
recommendations, the UK government is carrying out a consultation on
whether the UK should adopt the full list of copyright exceptions that
are laid out in the EU Copyright Directive, which provides the
overarching framework for copyright in Europe. It has now published some questionnaires seeking input in this area:

It is extraordinary how companies have failed to grasp three basic facts
about DRM: that DRM only needs to be broken once, and it is broken
everywhere, thanks to the Internet; that DRM is always broken at
least once; and that once DRM is broken, anything still with that DRM is
effectively worth less than zero -- since copies freely available
online never have DRM. Despite these inconvenient truths, copyright
companies continue to hope that there is some magic technology that will
"protect" them from the pirates. Here's the latest forlorn attempt to do that, as reported by paidContent:

One unfortunate knock-on effect of the revelations about the extent of
NSA information gathering seems to be that the spies in other countries
are starting to feel under-informed by comparison. Of course, many of
them already knew about what was going on: in addition to the British and the Dutch, there are now reports that Germany was also kept informed at the highest levels (original in German.) That would probably explain the revelation by the news magazine Der Spiegel that Germany has been trying to beef up its own snooping capabilities for a while:

Here on Techdirt we've had stories about how the ubiquity of digital cameras is changing the way we look at public events and art.
But as has also become clear, the ability to take photos of more or
less everything we see brings with it certain problems -- especially if
what we see are police.
So it was perhaps inevitable that the politicians would start to get
involved, in order to "solve" some of those problems. Here's a rather extreme example from Sweden, as reported by TechHive:

Techdirt readers may recall that over three years ago, the UK's Digital Economy Act was passed in totally disgraceful
circumstances. Since then, almost nothing has been heard about it, as
British civil servants grapple with the fact that this poorly-drafted
law is almost impossible to implement in any sensible way. If you were
wondering what is going on behind the scenes, James Firth has put
together a fascinating post piecing together the information that he was
able to glean. The main point is that the UK's "three-strike" warning letters won't be going out for years:

One of the problems with the debates around copyright and patents is
that they too often assume that intellectual monopolies are necessary in
order to promote innovation or even basic economic activity. But that
overlooks all kinds of domains where that's not true. In the field of
technology, free software and the other open movements based on sharing
are familiar examples of this kind of thing. Less well known so are the
so-called "informal economies" found in many parts of the world.

So the revelations from Edward Snowden keep on coming, exposing
ever-more profound attacks on privacy and democracy in the UK and
elsewhere. News that GCHQ is essentially downloading, storing and searching
through the entire flow of Internet traffic that comes into and goes
out of the UK without any specific warrant to do so is one side of that.
That seems to be taking place through an extremely generous
interpretation of the out-of-date RIPA law
that is supposed to bring some level of accountability to just this sort
of thing. The fact that it doesn't shows that we must reform RIPA and make it fit for the Internet age.

The last couple of weeks have been full of the revelations about NSA spying
on a massive scale. What has been slightly disconcerting is that the
agency and its defenders have essentially tried to argue that the spying
doesn't matter because it's only aimed at "foreigners". But that's us:
which means that we are the target of this spying, even if others get
caught up in it too.

Irrespective of the details of the current revelations about US
spying being provided by Edward Snowden in the Guardian, there is
already a huge collateral benefit. On the one hand, the US government
is falling over itself to deny some of the allegations by offering its
own version of the story. That for the first time gives us official
details about programmes that before we only knew through leaks and
rumours, if at all. Moreover, the unseemly haste and
constantly-shifting story from the US authorities is confirmation, if
anyone still needed it, that what Snowden is revealing is important -
you don't kick up such a fuss over nothing.

Remember the Digital Economy Act, surely one of the most disgraceful
episodes in recent British political history? It was "passed" back 2010
- I use inverted commas, since it was actually rammed through an almost
empty House of Commons in the guttering hours of the previous
government, with no scrutiny, riding roughshod over all those pointing
out it was both unjust and unworkable.

The extraordinary revelations about the NSA's global spying programme Prism
have only just started - was it really just last Thursday that things
began? So it would be extremely rash to attempt any kind of definitive
statement about what is going on. But that doesn't preclude a few
preliminary comments, as well as initial thoughts on what action those
of us in Europe might take in response.

It's been a while since I wrote about net neutrality, but of course
it's never gone away as an important theme. Indeed, it was inevitable
that it would start to rear its ugly head again, since so many powerful
companies have vested interests in destroying it. For example, in
Germany the telecom giant Deutsch Telekom (DT) has already made a move
to kill net neutrality by giving preference to its own IPTV platform. This has led to a heated debate about net neutrality in that country (for those who read German, the site hilf-telekom.de offers some hilarious satire of DT on the subject.)

Mozilla and its central Firefox project are themes that I have
returned to often on this blog. That's not so surprising: Mozilla is
one of the oldest free software projects, starting back in 1998 when Netscape stunned the world by announcing that it would open up its key product, Netscape Navigator.

"Law is the operating system of our society ... So show me the
manual!" Not alas, my witty words, but those found on the site
Public.Resource.Org, run by the redoubtable Carl Malamud.
The basic idea is simple: that laws can only be obeyed if they are
truly public, which means freely available, not hidden behind paywalls.
After all, how can the phrase "ignorance of the law is no excuse" have
any validity when key documents are only available to those with pockets
deep enough to afford them?And not just laws: we need case law and
associated government regulations too.

I love the spring. Not, of course, because of the glorious weather,
since we don't have any. But because it's time for the annual BSA report
on piracy, which is guaranteed to provide me with hours of innocent fun
as I go through finding its methodological errors and dodgy data.

I've written a number of posts looking at less-familiar advantages of
open source over closed source, and here's another one. Proprietary
systems can't be forked, which means that it's not possible to change
the underlying ethos, for example by tweaking the software or using code
on a different platform. But you can with open source, as this
interesting example shows.

I've written
a few times about open data in the context of clinical trials - the
information that must be provided when new drugs seek approval. As I
noted, there is a growing movement
to make such basic safety data freely available, the idea being that it
could then be analysed by third parties, perhaps finding new
applications of drugs, overlooked problems, or even wilful concealing of adverse effects.

The revelations of Edward Snowden about the NSA's snooping of citizens
both inside and outside the US are posing more questions than they
answer at the moment. One key area is whether the use of encryption --
for example for email -- is effective against the techniques and raw
power available to the NSA (and equivalents in other countries). That's
something that has come up before in the context of the UK's Snooper's
Charter. When a top official there was asked whether the proposed
surveillance technology would be able to cope with encrypted streams, he
replied: "it will." Snowden's claims about massive, global spying makes the issue even more pertinent.

As we've noted before, Hadopi has been a colossal failure
on just about every metric, and now seems on the way out. But French
taxpayers' money is still being wasted on the scheme, which continues to
send out huge numbers of warnings. Ironically, given its imminent
demise, Hadopi seems to have finally claimed its first disconnection
victim, as PC Inpact reports (original in French.)
The person involved has been sentenced to disconnection for 15 days,
and must pay a €600 fine. Strangely, it seems that he or she shared
only a couple of works, so even that brief period seems harsh. However,
there is still scope for an appeal, so the sentence is not yet definite.

News that the NSA has unfettered access to most of the leading Internet
services inevitably has an international dimension. After all,
Microsoft, Yahoo!, Google and the rest of the Naughty Nine
all operate around the world, so spying on their users means spying on
people everywhere. Indeed, as Mike explained earlier today, the NSA is
actually trying to quell criticism by selling this news as something
that purely concerns non-Americans (although that's clearly rubbish.)

Techdirt has been writing about investor-state dispute resolution
(ISDR) mechanisms in international trade treaties like TPP and
TAFTA/TTIP for two main reasons. First, because of the scale involved:
ISDR allows companies to sue entire countries for huge sums, alleging loss of future
profits. And secondly, because few seem aware of this growing threat
to the national sovereignty of many countries around the world. That
finally seems to be changing, with a number of articles warning about
the dangers of ISDR appearing recently.

One of the key flaws with the data retention schemes being proposed by
the UK and elsewhere, supposedly to catch terrorists and serious
criminals, is that they won't work. It is trivially easy to avoid
surveillance by using encrypted connections, for example those provided
by The Onion Router (Tor). This means that the only people who are likely to end up being spied on are innocent members of the public.

One of the concerns about TAFTA/TTIP is that it would repeat the mistakes of ACTA and SOPA as far as intellectual monopolies were concerned. This led to a call
by a group of public interest organizations for things like copyright
and patents to be excluded from TAFTA (disclosure: I was involved in the
drawing up of the text.) Needless to say, no notice was taken of that,
and a couple of weeks ago the European Parliament duly passed a resolution on TAFTA that said:

You might have hoped that the extensive discussions that took place
around SOPA a year or so ago would have warned off governments elsewhere
from replicating some of the really bad ideas there, like DNS blocking,
but it seems that Taiwan didn't get the message, as Global Voices reports:

Back in February we reported on a worrying
attempt by the European Commission to reframe the discussion about
modernizing copyright in Europe purely in terms of licensing, reflected
in the name of the initiative, "Licences for Europe". Although originally a series of discussions
were promised to "explore the potential and limits of innovative
licensing and technological solutions in making EU copyright law and
practice fit for the digital age," in practice moderators shut down
discussions of things like exceptions or even Creative Commons
licensing. As far as the Commission was concerned, it seemed the answer
to updating copyright for the modern age was just old-style licensing
and nothing else.

Recent news that Angelina Jolie underwent a preventive double mastectomy because of her elevated risk of developing breast cancer has drawn attention to the Myriad Genetics
case currently before the US Supreme Court, and to the whole area of
gene patents. Myriad's monopoly has allowed it to set a high price for
its tests -- $3000 -- and this is bound to have acted as a disincentive
for those who were unable to afford such a sum. It is therefore quite
likely that people have died as a result of Myriad's patents.

18 September 2013

As readers of this blog will have noticed, much of the most
innovative work in the field of openness is taking place in open data.
One of the largest stores of data is held by government, and the
argument for opening it up where possible is strong: after all, we, the
public, paid for this data, so it is only right that we, the public,
should have access to it.

Open Enterprise mostly writes about "obvious" applications of open
source - situations where money can be saved, or control regained, by
shifting from proprietary to open code. That battle is more or less
won: free software is widely recognised as inherently superior in
practically all situations, as its rapid uptake across many markets
demonstrates. But there are also some circumstances where it may not be
so obvious that open source is the solution, because it's not always
clear what the problem is.

One of the more disgraceful examples of the inherent selfishness of
the copyright world is that it has consistently blocked a global treaty
that would make it easier for the blind and visually impaired to read
books in format like Braille. The thinking seems to be that it's more
important to preserve copyright "inviolate" than to alleviate the
suffering of hundreds of millions of people around the world.

One of the amazing things about free software is how it has managed
to succeed against all the odds - and against the combined might of some
of the world's biggest and most wealthy companies. That shows two
things, I think: the power of a simple idea like open collaboration, and
how individuals, weak on their own, collectively can achieve miracles.

I've written many times about why FRAND licensing
is not an option for open source projects, and should therefore be
replaced by Royalty/Restriction-Free (RF) terms when it comes to
defining open standards to create a level playing field. That's simply a
fact arising from the nature of free software licences. But it turns
out that FRAND is fundamentally flawed anyway, for reasons the following press release
from the European Commission, on its "Statement of Objections to
Motorola Mobility on potential misuse of mobile phone standard-essential
patents", makes clear:

For the last few months, Techdirt has been following the surprisingly
rapid embrace on both sides of the Atlantic of the proposed
transatlantic free trade agreement, known variously as TAFTA or TTIP. Coming out of nowhere, the agreement is being talked about as if its success and benefits are more or less guaranteed.

As we've pointed out in a few stories, drones aren't necessarily
something to worry about. Like any technology, they can be used for good and bad purposes, and shouldn't be dismissed out of hand. But determining where exactly the line between acceptable and unacceptable lies is tricky, as the following story from the Capitol Hill Seattle blog shows:

A recurrent theme here on Techdirt is the lack of transparency when
international agreements and treaties are being drawn up. That's
increasingly recognized not just as problematic, but simply unacceptable
in an age when the Internet makes it easy to provide both access to
draft documents and a way for the public to offer comments on them.

A couple of days ago Techdirt wrote about how Murong Xuecun, a
well-known user of the Chinese microblog Sina Weibo with over a million
followers, had his account closed down suddenly. Murong has now written a fine article about the background to what happened:
he points out that the deletion of his account looks to be part of a
larger clampdown on the use of microblogging services by well-known
figures who are critical of the Chinese government. The problem for the
latter is that these services are becoming a real channel for free
expression and less-than-perfectly-censored information:

Although New Zealand's decision not to allow patents for programs "as such"
was welcome, other moves there have been more problematic. For
example, after it became clear that the New Zealand intelligence
service, the Government Communications Security Bureau (GCSB), illegally
wiretapped and spied on Kim Dotcom, the New Zealand government
announced that it would change the law so as to make it legal in the
future to snoop
on New Zealanders as well as on foreigners. Judging by a major new
bill that has been unveiled, that was just the start of a thoroughgoing
plan to put in place the capability to spy on every New Zealander's
Internet activity at any moment.
Here's an excellent analysis of what the bill proposes, from Thomas Beagle, co-founder of the New Zealand digital rights organization Tech Liberty:

It will hardly come as a surprise to anyone to learn that a popular writer and well-known critic of China's pervasive censorship system has run into trouble for his views. Fortunately, in this case that doesn't mean getting arrested, but nonetheless involves quite a dramatic slapdown:

The UK's new orphan works legislation allows works to be classed as
orphans only after a "diligent search" has been conducted to find the
owner. The fear expressed by some is that this "diligent" search won't
be very diligent, allowing publishers to use materials that aren't
orphans. That's actually wrong
for a number of reasons, as Techdirt explained recently, but the
continuing furor from photographers in particular has been such that the
UK's Intellectual Property Office (IPO) felt compelled to issue a
document entitled "The Enterprise and Regulatory Reform Act 2013 –Your photos and you" (pdf) explaining how the system would work, and why the fears were unjustified.

If there's one clear trend that has emerged in recent years, it's that
those who download and share unauthorized copies of files the most also
tend to be the most avid purchasers of similar material. This
completely negates the copyright industry's rhetoric that people who
share files are just a bunch of freeloaders, suggesting instead that
it's more a matter of sampling materials before going on to buy. It also
implies that instead of seeking to punish such downloaders, the
copyright companies should actually try to nurture them as potentially
their best customers.

If you wanted an indication of just how much copyright has moved on from
being a dry and boring topic of interest only to a few specialist
lawyers to an exciting area full of surprising twists and turns worthy
of a soap opera, you could do worse than look at what's been happening
in Colombia recently.

A couple of weeks ago, we wrote about the growing importance of investor-state dispute resolution
in so-called free trade agreements (FTAs). One of the most troubling
aspects is how potentially it can be used to undo the hard-won gains for
important areas like access to medicines. The US law professor Brook K.
Baker, whose work we discussed last year, has written an excellent exploration of this under-appreciated risk. After an introduction running through the recent wins in the field of access to medicines -- a topic
that we've covered extensively here on Techdirt -- he explains how big
pharma could employ investor-state dispute resolution to thwart these
and similar moves to protect health:

Few patent sagas have been as fraught as New Zealand's attempt to revise its laws to exclude software. Techdirt first wrote about this move in March 2010, and again
in June 2010, when it seemed that lobbyists had convinced the New
Zealand government to reverse its position and allow software patents.
Then, a month after that, word was that software would indeed be unpatentable. Things went quiet for a while, until a new version of the proposed law was unveiled by New Zealand's Commerce Minister Craig Foss, apparently weakening the bill once more:

There's a worrying trend around the world for governments to extend
online surveillance capabilities to encompass all citizens -- often
justified with the usual excuse of combatting terrorism and/or child
pornography. The latest to join this unhappy club is India, which has
put in place what sounds like a massively intrusive system, as this article from The Times of India makes clear:

Last week I reported on the reply I received from Jean Bergevin of the European Commission on the subject of the IPRED consultation,
and my own response to that. I wondered whether I would receive a
reply, suspecting that I might not. I was wrong: not only did a reply
turn up, it turned up almost by return of post. Here's what Mr Bergevin
wrote:

Readers of this blog don't need to be told about Windows' awful
security record, or how, when news outlets talk glibly of "viruses",
they actually nearly always mean Windows malware. But sometimes there
are stories from this weird world that make even seasoned
Windows-watchers like me shake my head in disbelief.

Seeds might seem far from the world of high tech and free software, but they have much in common. Seeds contain DNA, which is a (quaternary) digital code
much like a binary program. Just as there is free software that anyone
may use and share, there are free seeds - those that are part of the
ancient seeds commons, created over thousands of years, available for
use by anyone. And just as free software is threatened by software
patents, so seeds are equally endangered by seed patents.

Remember the bad old days when the UK government forced people to use
Microsoft software in order to interact with it online? Remember how
we thought the UK government had finally moved on, recognising that it
should use truly open standards allowing citizens the freedom to adopt
whatever software they wanted, not least through the fine, open
standards-based Gov.uk site? We were wrong, as Tim Jeffries pointed out on Twitter earlier today.

Back in November 2011, we wrote about the Belgian music royalty
collection agency SABAM's demand for 3.4% of Internet subscriber fees as
"compensation" for online piracy in Belgium. As Tim Cushing explained
back then, this was ridiculous
on just about every level. But SABAM doesn't let little things like
that get in the way of its desperate attempt to avoid moving with the
times and coming up with new business models. So after failing dismally
to convince Europe's highest court that it could force ISPs to spy on their customers, SABAM has now moved on to suing ISPs instead, as TorrentFreak reports:

Here on Techdirt we often talk about the copyright ratchet
-- the fact that for three hundred years changes to copyright have
always been in one direction: longer, wider and stronger. But there's a
group of countries where the copyright ratchet isn't in place yet.
These are the so-called LDCs -- the Least Developed Countries -- where
many of the world's poorest citizens live. That's because the main
Agreement on Trade Related Aspects of Intellectual Property Rights,
better known as TRIPS, explicitly allows LDCs a transitional period of ten years,
during which time they are not required to meet all the stringent
requirements laid down there for granting intellectual monopolies.
Moreover, the TRIPS agreement specifies:

Unless we are farmers, we tend to take seeds for granted. But
civilisation is built on seeds: it was the rise of large-scale
agriculture, based in part on the skilful breeding of ever-better seeds,
that eventually allowed towns and then cities to form; and with them,
the trades, arts and sciences that were possible once enough food could
be produced by just a fraction of the population. That makes national
seed policies -- how governments regulate the production and sale of
plant varieties -- a crucial if neglected aspect of our urban lives.

As Africa continues to develop rapidly, Western countries and companies
are increasingly interested in bringing it into existing international
legal and commercial frameworks, but always on terms that maintain their
dominance. One way of doing that is through intellectual monopolies:
last year we wrote about proposals for a Pan-Africa Intellectual
Property Organization (PAIPO), whose benefits for Africa seem dubious.
Meanwhile, here's another plan that is being presented as a vital part
of Africa's modernization process, and yet oddly enough seems to benefit giant Western companies most, as AllAfrica reports:

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.